The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
(Here is the latest edition of the Institute for Justice's weekly Short Circuit newsletter, written by John Ross.)
If the government violates your rights, there must be a remedy. So what remedy is available to a citizen detained without reasonable suspicion? None at all for one recent Supreme Court petitioner, notes Evan Bernick of the Center for Judicial Engagement. But the decision drew a pair of notable and noteworthy dissents. Read more here.
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DOT issues a rule that would require airlines to make 25 percent of their kiosks blind-accessible within three years. The National Federation of the Blind argues that it should be 100 percent, without delay. D.C. Circuit: But we cannot reach the merits of their claim because they filed in the wrong court and 11 days too late.
Asylum applicant submits FOIA request for records in his case, is denied. D.C. Circuit: While the applicant should have exhausted his administrative remedies before filing suit, that shortfall is irrelevant given DHS's decision to advance an entirely new rationale for withholding the records after applicant filed his case.
An antitrust class action against Visa and MasterCard that has dragged on for ten years and resulted in a $7.25 billion settlement is going to drag on even longer now that the Second Circuit has concluded that the class plaintiffs were inadequately represented.
Despite the urgings of a family friend, small-time Camden County, N.J. crook repeatedly declines to rob drug dealers. He changes his mind after he learns the loot will pay for the friend's mother's cancer treatment. Yikes! The friend is an ATF informant. Third Circuit: Could be a jury might think that's entrapment.
Waldorf, Md. restaurant owners: A condition on our liquor license barring us from hosting live entertainment violates the First Amendment. (The entertainment in question? Go-go music, a style associated with funk that is unique to the Washington D.C. region.) Fourth Circuit: The Rooker-Feldman doctrine, which often prevents litigants who lose in state court from seeking relief in federal court, does not apply here, so the suit should not have been dismissed.
Dallas vice cop feeds tips to prostitute in exchange for sexual favors. When FBI starts investigating, cop tells prostitute to leave town, not cooperate, and lie about their relationship. Surprise! Turns out prostitute is cooperating with the FBI. Fifth Circuit: Convictions affirmed, and, what's more, we overturn the trial court and reinstate the jury's conviction for obstructing by telling the prostitute to get rid of her cell phone.
The EEOC recently issued a "guidance" document limiting the use of criminal background checks by employers. Texas, which relies on such checks when hiring public employees, sued. EEOC: Since we issued a "guidance" and not a "rule," you aren't allowed to sue. Fifth Circuit: Texas's lawsuit goes forward.
No dusky gopher frogs (an endangered species) have lived in 1,500-acre area of St. Tammany Parish, La. for decades, but federal officials nonetheless designated the land as a critical habitat for the species in 2012. Landowners: So now we can't use our land in the otherwise lawful manner we'd intended. Fifth Circuit (over a dissent): The agency's decision was neither arbitrary nor capricious.
Sixth Circuit: Hanging around with drug dealers, owning multiple cell phones, sending text messages that seem to refer to drug purchases, and having a 12-year-old conviction for drug dealing are probably all correlated with having drugs in your house, but without more they don't create probable cause to search your house.
An Illinois district judge dismissed an excessive-force claim after consulting newspaper accounts that led him to believe the claim was frivolous. Seventh Circuit: What on earth could have led you to believe that such independent research was appropriate?
Man sues Indiana Bar Examiners, challenging rule that excludes from admission anyone who "advocates the overthrow" of the U.S. government. Seventh Circuit: Although this fellow has announced plans to publicly distribute copies of the Communist Manifesto, he nonetheless lacks standing. For one, he has not actually applied to the bar. For two, the last time he applied (over ten years ago and to the Illinois bar) his application was denied for the completely independent reason that he failed to disclose multiple arrests and firings.
Eighth Circuit: No qualified immunity for Anoka County, Minn. jail officials/nurse who refused multiple requests for prescribed painkillers from inmate who had dental surgery day before arrest, leading to two days of agonizing pain and me getting the heebie-jeebies while reading the decision.
In violation of the Fourth Amendment, Salem, Ore. police officer approaches woman's back door, where he smells marijuana. She's arrested for child endangerment, beats the charges after the evidence is excluded, and then sues for false arrest. Ninth Circuit: The exclusionary rule doesn't apply to your lawsuit against the police, who clearly had probable cause to arrest.
Here at the Institute for Justice, we say the government shouldn't make it tough for people to earn an honest living without a solid public-health or safety reason. Hialeah, Fla. advanced no such safety interest in the thicket of regulations they've imposed on mobile vendors—which the vendors showed actually make vending more dangerous. Nearly impossible to comply with, the law's only remaining government interest was to protect brick-and-mortar businesses from competition. Representing hard-working flower vendor Silvio Membreno, IJ sued in 2011. This week the Florida Supreme Court declined to review a lower court's decision that the law does not violate the state's constitution. Read more about the case here.